Re: Don’t do anything you’re going to regret later

[Lynne Henderson]

Thanks, Andy.  Kierkegaard is one of my favorites.
that said, Kennedy goes beyond "regret" and into "syndromes"/ 
psychological disorders 'caused" by abortions in apparently in thinking 
women or at least improperly "advised' women.  eg, "severe depression 
and loss of [one presumes self] esteem.'  sure many woman are sad, 
regret that was the choice they had to make, but they do not suffer 
psychopathological  "depression" in the psychological sense or a "loss 
of self esteem".   *That's* the point of Ginsburg's survey of the 
psychological literature--nothing *pathological* here that "endangers 
(mental) health" such that the government is justified in intervening.  
(else, gee, perhaps we should intervene on behalf of all sorts of 
decisions--choosing Stanford over Yale, law over medicine, going to SF 
State over Berzerkeley,  being professors over practice, turning down 
one marriage proposal and accepting another,  going into military 
service and having to kill enemies--which actually *does* lead to 
PTSD--) IOW, Soren was right about regret (and probably sufered 
pathological regret over his rejection of the woman he loved, I feel 
*awful* for not remembering his object of desire/marraige, only wish, 
as for JS Mill and Harriet Taylor, it had worked out), but wrong about 
government interference with choice in light of "health".

As for anecdotal vs peer-reviewed, controlled studies--yes, the Supreme 
Court selectively chooses among which types of evidence "count", muchto 
  the vexation of scientists.  (Actually most evident in  death penalty, 
title VII cases, *Grutter*, etc.).  As I often quip to  my students, 
"what do you call hundreds of 'anecdotes?'"?  "Data".  But as in all of 
the social sciences,  absolute proof is not possible--one looks for 
robustness of results across domains and methods instead.  Violent 
pornography and lack of attitudes of equality of women correlate with 
rape, sexual abuse, etc. for example.  doesn't prove "causation" but is 
serious evidence of the influence o images and "speech" on violence 
against women. . . .But see the robustness of results on race of victim 
and death penalty and of "death qualification" and death penalty. . . .

OTOH, your point at a universal level is extremely well-taken.  
"regret"for exercising a (strong) right cannot be the basis for 
restricting, burdening, or abolishing that strong right: else this 
listserv would be in deep trouble, as we all would be on First 
Amendment grounds.  The problem re: abortion is that *Casey* for all 
the protestations of the troika's opinion to the contrary reduce a 
woman's interest in choosing not to continue a pregnancy to just 
that--an interest to be "balanced' against a State's (and now the 
Fed's) interest in "her health" and "potential human life."  The 
promiseof equality in the detailed exposition of domestic violence has 
been abandoned;   I/we females now have only a cognizable interest that 
can be outweighed by all sorts of state interests including 
"legitimate" interests in my/our "mental health."

Respectfully,
Lynne

Prof. Lynne Henderson

On Apr 22, 2007, at 5:35 PM, Andrew Koppelman wrote:

> "Marry, and you will regret it. Do not marry, and you will also regret 
> it. Marry or do not marry, you will regret it either way. Whether you 
> marry or you do not marry, you will regret it either way. Laugh at the 
> stupidities of the world, and you will regret it; weep over them, and 
> you will also regret it. Laugh at the stupidities of the world or weep 
> over them, you will regret it either way. Whether you laugh at the 
> stupidities of the world or you weep over them, you will regret it 
> either way. Trust a girl, and you will regret it. Do not trust her, 
> and you will also regret it. Trust a girl or do not trust her, you 
> will regret it either way. Whether you trust a girl or do not trust 
> her, you will regret it either way. Hang yourself, and you will regret 
> it. Do not hang yourself, and you will also regret it. Hang yourself 
> or do not hang yourself, you will regret it either way. Whether you 
> hang yourself or do not hang yourself, you will regret it either way."
>
> Soren Kierkegaard's observation, just quoted, is pertinent to Justice 
> Kennedy's observation, in Gonzales v. Carhart, that abortion methods 
> may be restricted because "some women come to regret their choice to 
> abort the infant life they once created and sustained," possibly 
> resulting in "[s]evere depression and loss of esteem."  Justice 
> Ginsberg responds by citing peer-reviewed studies showing that women 
> who abort show no higher rate of psychiatric disorder than those who 
> carry pregnancy to term.  But this doesn't really disprove Kennedy's 
> point.  Kennedy admits that he has "no reliable data to measure the 
> phenomenon," but thinks that it is "unexceptionable" that this story 
> is true of "some women."  All he needs to sustain his claim is 
> anecdotal evidence that this kind of thing sometimes happens.
>
> But what is the major premise of this argument?  That constitutional 
> liberties can be restricted if it sometimes happens that someone 
> regrets exercising the liberty in a given way?  It's hard to imagine 
> any liberty that no one ever regrets.  Some people who criticize 
> actions of the government later wish that they had kept their mouths 
> shut.  Some criminal suspects regret that they didn't confess 
> everything when the police first interrogated them.  Some of the 
> slaves freed by the Thirteenth Amendment were old and infirm, and some 
> of them probably regretted leaving the plantation.
>
> It is hard to imagine the boundaries of this principle as Kennedy has 
> stated it.  He cannot possibly mean it.  One can only hope that, at 
> some point, contemplating what he has written, he regrets it.
>
>
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